STANDARD TERMS AND CONDITIONS FOR BRAEMAR OFFSHORE
These Conditions (as defined below) shall govern the provision of the Services including the User’s access to and use of Braemar Offshore and the Data. The User has agreed to accept such terms and conditions on each occasion the User accesses Braemar Offshore.
The User’s attention is particularly drawn to the provisions of clause 10 which contains provisions excluding or limiting the Supplier’s liability.
1.1. In these Conditions, the following definitions apply:
Affiliates of an entity means its group undertakings as construed in accordance with section 1161 of the Companies Act 2006.
Applicable Laws means all and any laws, regulations, ordinances, directions or directives issued by any government or regulatory body which apply to or could apply to the Services and including, without limitation, any sanctions imposed or agreed by the United Kingdom, United Nations, the European Union or the United States of America and laws relating to money laundering, anti-bribery and corruption (including without limitation the UK Bribery Act 2010).
Braemar Offshore means a bulletin board operated by the Supplier which includes, among other things, live access to offshore fixtures, requirements and positions from the North Sea market, as well as market reports.
Braemar Offshore Energy Services App means the application that provides access to Braemar Offshore, available for certain mobile users.
Conditions means these terms and conditions as amended or supplemented from time to time in accordance with clause 20.1.
Confidential Information means information that is proprietary or confidential and includes, for the avoidance of doubt, the Data.
Data means the data contained on Braemar Offshore which is provided by the Supplier or Third Parties.
Data Protection Legislation means the General Data Protection Regulation ((EU) 2016/679) and all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU version of the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 and any successor legislation.
Intellectual Property Rights means all patents, rights to copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Services means the Supplier providing the User with access to Braemar Offshore in accordance with these Conditions via the Braemar Offshore App and via www.braemaroffshore.com or any other website notified to the User from time to time.
Supplier means Braemar Shipbroking Limited.
Third Parties means the third parties whose Data is available to the User via Braemar Offshore.
User means the person who accesses Braemar Offshore.
1.2. Unless the context otherwise requires, each reference in these Conditions to:
1.2.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means including without limitation e-mail, WhatsApp, and SMS messaging;
1.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3. a clause is a reference to a clause of these Conditions;
1.2.4. references to “controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing” shall have the meanings given to them under the Data Protection Legislation; and
1.2.5. a “Party” or the “Parties” refer to the parties to these Conditions.
1.3. The headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions.
1.4. Words imparting the singular number shall include the plural and vice versa.
2. Access to Braemar Offshore and the Data
2.1. The Supplier hereby grants to the User a free, non-exclusive, non-transferable right, without the right to grant sub-licences, to access Braemar Offshore and the Data solely for the User’s internal business operations.
2.2. The User shall not:
2.2.1. except as permitted by Applicable Laws which cannot be excluded and except to the extent expressly permitted under these Conditions:
184.108.40.206. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Braemar Offshore or the Data (as applicable) in any form or media or by any means; or
220.127.116.11. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Braemar Offshore; or
2.2.2. access all or any part of Braemar Offshore and the Data in order to build a product or service which competes with the Services and/or Braemar Offshore; or
2.2.3. use the Data, in whole or in part, in any prospectus, admission document, information memorandum, loan or other agreement, document or filing; or
2.2.4. use Braemar Offshore and/or the Data to provide services to third parties; or
2.2.5. license, sell, rent, lease, or otherwise commercially exploit, or otherwise make Braemar Offshore and/or the Data available to any third party; or
2.2.6. introduce or permit the introduction of, any virus into the Supplier’s network and information systems.
2.3. The User shall use all reasonable endeavours to prevent any unauthorised use of, the Services and/or the Data and, in the event of any such unauthorised use, promptly notify the Supplier.
2.4. The rights provided under this clause 2 are granted to the User only and shall not be considered granted to any subsidiary or holding company of the User.
2.5. The Supplier may from time to time make amendments to Braemar Offshore or to any other associated material or facilities under its control.
3. Access to the Services
3.1. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance, which the Supplier will endeavour to carry out outside of normal business hours in the United Kingdom.
4. Supplier’s obligations
4.1. The Supplier:
4.1.1. does not warrant that:
18.104.22.168. the User’s use of the Services will be uninterrupted or error-free;
22.214.171.124. the Services, Braemar Offshore or the Data are fit for a particular purpose;
126.96.36.199. the Services, Braemar Offshore or the Data will meet the User’s requirements or expectations; or
188.8.131.52. Braemar Offshore or the Services will be free from viruses and vulnerabilities; and
4.1.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the User acknowledges that the Services and the Data may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
4.1.3. does not make any representations, warranties, guarantees of any kind, whether express or implied, in relation to the information contained on Braemar Offshore (including as to its accuracy) or contained within the Data and shall not be liable to any person (including the User) for losses, damage, costs or expenses howsoever caused arising directly or indirectly out of or in connection with Braemar Offshore and/or use of or reliance on the Data;
4.1.4. shall be under no obligation to maintain Braemar Offshore or the Data contained therein, or any necessary licences, consents or permissions necessary to provide the Services or Braemar Offshore or the Data;
4.1.5. shall be under no obligation to provide access to Braemar Offshore or the Data free of any charge; and
4.1.6. shall be under no obligation to update Braemar Offshore or the Data contained therein where information becomes available after Data is published on Braemar Offshore.
4.2. The Supplier shall be free to enter into similar agreements with third parties, and shall not be prevented from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.
5. User’s obligations
5.1. The User shall be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.
5.2. The User acknowledges that Braemar Offshore and the Data contained therein does not constitute a recommendation by the Supplier to proceed or not proceed with a particular course of action (such decisions are solely for the User to make) and does not constitute investment advice or an invitation or inducement to engage in investment activities.
6. Data Protection
6.1. In providing, receiving, or requesting the Services, each Party may be required to provide the other Party with certain personal data and, in such event, each Party shall comply (and assist the other in complying) with the obligations imposed under the Data Protection Legislation in connection with such personal data. Each Party will be a data controller of the personal data supplied by the other Party, but in no event will the Parties be joint controllers. Each Party undertakes that (i) it is lawfully entitled to disclose any personal data; (ii) any data subject whose personal data it is providing under this Contract is aware of the use of such data; (iii) it will lawfully use personal data provided to it for the purposes of performing their obligations under the Contract, administering the relationship between the Parties and, in the case of the Supplier, disclosing it to any of its Affiliates for sales and marketing purposes; and (iv) it will have in place appropriate technical and organisational measures to protect the security, confidentiality and integrity of any personal data supplied.
7. Subscription fees
7.1. Access to Braemar Offshore and the Services is free of charge. The Supplier reserves the right to introduce subscription fees and the conditions for their payment at any time. In such event, the Supplier will notify the User via Braemar Offshore.
8. Intellectual Property Rights
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (including in relation to Braemar Offshore and the Data) are owned by the Supplier or the Third Parties, as indicated in Braemar Offshore, and these Conditions do not grant any Intellectual Property Rights to the User.
9.1. Each Party undertakes that, except as provided by the remainder of this clause 9, or as expressly authorised in writing by the other Party, it shall keep confidential all Confidential Information and not disclose any Confidential Information to its Affiliates and any of their respective officers, employees, contractors or suppliers as is necessary for the purposes contemplated by the Contract, in connection with marketing or providing other services to the Client or its Affiliates, compliance or audit purposes, or as required by law.
9.2. Either Party may disclose any Confidential Information to its Affiliates and any of their respective officers, employees, contractors or suppliers as is necessary for the purposes contemplated by the Contract, in connection with marketing or providing other services to the Client or its Affiliates, compliance or audit purposes, or as required by law.
9.3. The obligation in clause 9.1 shall not extend to any information which:
9.3.1. is or becomes public knowledge through no fault of a receiving Party;
9.3.2. was in the receiving Party’s lawful possession prior to the date of disclosure;
9.3.3. is lawfully disclosed to the receiving Party with no restrictions on disclosure;
9.3.4. is independently developed by the receiving Party; or
9.3.5. is required to be disclosed by law, regulation or any governmental or competent regulatory authority.
9.4. In all cases the obligation of confidentiality in this clause 9 shall be deemed to end two years after the end of performance of the Services.
9.5. If the parties have entered into a separate confidentiality or non-disclosure agreement regarding the Contract, the terms and conditions of such agreement shall apply regarding such disclosure to the exclusion of the terms of this clause 9.
10. Limitation of Liability
THE USER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
10.1.1. death or personal injury caused by the Supplier’s negligence; or
10.1.2. fraud or fraudulent misrepresentation.
10.2. Except as expressly and specifically provided in these Conditions:
10.2.1. the User assumes sole responsibility for the use of Braemar Offshore and the Data by the User, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided in connection with the Services;
10.2.2. all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions; and
10.2.3. the Services and the Data are provided to the User on an “as is” basis.
10.3. Subject to clauses 10.1 and 10.2:
10.3.1. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
10.3.1.1. any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions;
10.3.1.2. anything arising out of or in connection with a modification of the Services or Data by anyone other than the Supplier;
10.3.1.3. the User’s use of Braemar Offshore or Data in a manner contrary to the instructions given to the User by the Supplier; or
10.3.1.4. the User’s use of the Services or Data after notice of an alleged or actual claim from the Supplier or any third party; and
10.3.2. the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with these Conditions shall in no circumstances exceed £1,000.00.
10.4. Any claim by the User against the Supplier arising out of or in connection with the Services shall be made in writing and notified to the Supplier within 1 month of the date upon which the User became aware, or ought reasonably to have become aware of any occurrence alleged to give rise to such claim. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. The Supplier shall in any event be discharged of all liability whatsoever and howsoever arising in respect of the Services unless formal proceedings be brought and written notice thereof is given to the Supplier within 1 year from the date of the occurrence alleged to give rise to a cause of action against the Supplier.
10.5. The Services shall be performed by the Supplier for the benefit of the User only. The Supplier does not accept any responsibility or liability to any third party for the Services performed for the benefit of the User, unless the Supplier has expressly agreed otherwise in writing.
10.6. These Conditions sets out the User’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liabilities in connection with the Services.
11.1. The User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Services and/or the Data.
12.1. The Supplier reserves the right to terminate these Conditions by terminating the Services and cancelling access to Braemar Offshore immediately with no prior notice.
12.2. Without limiting its other rights or remedies, the Supplier may terminate this these Conditions by written notice with immediate effect if in the Supplier’s reasonable opinion it would be likely to suffer damage to its reputation by continuing to act and/or be associated with the User.
12.3. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Conditions which existed at or before the date of termination shall not be affected or prejudiced by termination of these Conditions.
12.4. Clauses which expressly or by implication have effect after termination shall continue in full force and effect including without limitation clauses 10, 11, 12 and 21.
13.1. The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any and all of its rights under these Conditions.
13.2. These Conditions are personal to the User and the User shall not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or in any other manner transfer to any third party any of its rights or obligations under these Conditions without the prior written consent of the Supplier, such consent not to be unreasonably withheld.
14. Force Majeure
14.1 Neither party shall be in breach of these Conditions nor liable for any delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control.
15.1. Any notice or other communication required to be given to a party under or in connection with these Conditions shall be in writing and shall be (a) delivered to the other party personally, or sent by prepaid first-class post, recorded delivery, or by commercial courier, at its registered office or such other address as the receiving Party may notify from time to time for such purposes, or (b) by e-mail to such address as the receiving party may notify from time to time for such purposes.
15.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by e-mail, at the time of transmission (unless a delivery failure notice is received by the sender). If deemed receipt under this clause would occur on a public holiday or outside 9:00 am to 5:00 pm Monday to Friday in the place of receipt, the notice shall be deemed to have been received when such usual business hours next recommence.
15.3. This clause 15 shall not apply to the service of any proceedings or other documents in any legal action.
16. Entire Agreement
16.1. These Conditions embody and set forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of these Conditions. The User shall not be entitled to rely on any agreement, warranty, statement, representation, understanding or arrangement not expressly set forth in these Conditions, save for any representation made fraudulently.
17.1. A waiver of any right under these Conditions is only effective if it is expressly given in writing and shall not be deemed to be a waiver of any subsequent breach or default.
17.2. No failure or delay by a Party in exercising any right or remedy under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.1. The Parties agree that, in the event that one or more of the provisions of these Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall, to the minimum extent required, be deemed severed from the remainder of these Conditions and the remainder of that and all other provisions of these Conditions shall remain valid and enforceable.
19. Third Parties
19.1. Unless it expressly states otherwise, these Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.
20.1. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to these Conditions, shall only be binding when expressly agreed in writing by the Supplier. Notwithstanding the foregoing, the Supplier reserves the right to update these Conditions from time to time without the User’s consent and such updated terms shall be deemed accepted by the User continuing to use the Services. It is the User’s sole responsibility to review these Conditions prior to using the Services.
21. Governing Law and Jurisdiction
21.1. These Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2. Any dispute, controversy, proceedings or claim between the Parties relating to these Conditions or the Services (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.